The Resurrection of Religious Freedom?

COMMENT

THE RESURRECTION OF RELIGIOUS FREEDOM?

Stephen L. Carter* What a difference three years can make. After a series of unhappy religious freedom precedents culminated in the Supreme Court's hor- rible 199o decision in Employment Division v. Smith,1 commentators were falling all over each other to insist that the Justices were allowing the Free Exercise Clause to disappear.2 In Smith, a department of the Oregon state government disciplined two employees who had violated state policy by using peyote, a controlled substance. The employees protested that the Free Exercise Clause was a shield, because they were adherents of the Native American Church and had used peyote as part of a religious ritual. Justice Scalia's opinion for the majority dismissed the claim: the fact that the peyote use had religious significance, Justice Scalia wrote, was irrelevant, as long as the state law was not "an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs." 3 In the absence of an open governmental attack on the religion, the opinion concluded, the religions, like other groups, must take their chances in politics. 4 That was then. This is now. At the end of its most recent Term, the Court decided Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,5 which raised a subtly different question. There the city of Hialeah, Florida, adopted a series of ordinances restricting the slaughter of animals; if valid and enforceable, the ordinances would have made it impossible to practice the religion of Santerfa, in which animals are killed as part of particular forms of worship. Animal-rights groups, which have long been critical of Santerfa, filed briefs on behalf

* William Nelson Cromwell Professor of Law, Yale Law School. The theory of religion for which I argue in this Comment is discussed in greater depth in my 1993 book, The Culture of Disbelief. I have drawn on sections of the book that are relevant to the cases discussed here. I have had the benefit of comments from Enola Aird and (although he does not know it) Akhil Amar. ' 494 U.S. 872 (i99o). 2 See, e.g., Timothy L. Hall, Religion, Equality, and Difference, 65 TEMP. L. REV. 1, 20 (1992); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHi. L. REV. 115, 137-40 (1992); Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Cui. L. REV. 195, 215-19 (1992). 3 Smith, 494 U.S. at 882. 4 See id. at 89o. 5 113 S. Ct. 2217 (1993).

HeinOnline -- 107 Harv. L. Rev. 118 1993-1994 1993] THE SUPREME COURT- COMMENT of the city. 6 But the Justices, in a complicated but unanimous set of opinions, struck the law down. Four days earlier, in Lamb's Chapel v. Center Moriches Union Free School District,7 the Justices had ruled, also unanimously, that a public school that made its facilities generally available to outside groups to show films could not bar a religious organization that wanted to show a film that offered what the Court coyly called "a religious perspective."8 The Justices held, first, that to discriminate on the basis of the film's content violated the church's freedom of speech and, second, that to allow religious groups the same rights as all others to use school facilities outside of school hours was not an establishment of religion. 9 In both cases, the Court wrote narrowly - so narrowly, in fact, that advocates of religious liberty should not celebrate too early. Yet in the combination of these two cases (and a handful of others of recent vintage), there is the possibility of fashioning a jurisprudence of the religion clauses that will eliminate the two most depressing elements of the Court's decisions over the past decade: the embarrassing tendency to cabin the Free Exercise Clause until the rights it conveys are essentially the same as those protected by the other sections of the First Amendment, and the insensitive tendency to treat religion as itself an evil with which the Constitution is concerned. The Court, so far, has not abandoned Smith, but the unanimous results in Lamb's Chapel and Lukumi Babalu Aye suggest that the Justices may yet decide to rescue religious freedom.

Whatever Happened to the Free Exercise Clause? The Court decided Lukumi Babalu Aye and Lamb's Chapel against the background of a twenty-year retreat from the implications of its ruling in Wisconsin v. Yoder.'0 In Yoder, the Old Order Amish won a rather spectacular victory when the Justices allowed them to cease sending their children to school after the eighth grade. The Amish cited solely religious objections to further instruction: by the eighth grade, they explained, their children had learned all that they needed

6 See, e.g., Brief for the Humane Society of the United States, American Humane Associa- tion, the American Society for the Prevention of Cruelty to Animals, Animal Legal Defense Fund, Inc., and the Massachusetts Society for the Prevention of Cruelty to Animals as Amici Curiae in Support of Respondent at 9-11, Lukumi Babalu Aye (No. 91-948); Brief of People for the Ethical Treatment of Animals, New Jersey Animal Rights Alliance, and the Foundation for Animal Rights Advocacy as Amici Curiae in Support of Respondent at 2, Lukumi Babalu Aye (No. 91-948). 7 13 S. Ct. 2141 (1993). 8 Id. at 2147. 9 See id. at 2147-48. 10 406 U.S. 205 (1972).

HeinOnline -- 107 Harv. L. Rev. 119 1993-1994 HARVARD LAW REVIEW [Vol. 107:118 to know to undertake the tightly disciplined Amish way of life, which high school education would undermine." Over an angry dissent from Justice Douglas, who seemed to question the authority of parents to make religious choices for their children, 12 the Court accepted this claim. 13 The Amish, of course, have every reason to be suspicious of state power. They are (along with the Mennonites and the Hutterians) the descendants of the Anabaptists, whose members were once drowned or beheaded for baptizing adults. Even in America, to which members of outsider religions have historically fled to escape oppression, dissenters have encountered violence at the hands of their fellow citizens, discrimination at the hands of the government, and indifference at the hands of the courts. A bit over a century ago, when Mormons were being beaten to death throughout the country or forced into exile, their property destroyed, the Supreme Court sustained the convictions of adherents who had violated the anti-polygamy laws. According to the Court in Reynolds v. United States, 14 the Mormons who took more than one bride were "subversive of good order."' 5 Aside from Yoder, little has changed in the Court's free-exercise jurisprudence in the century since Reynolds. We are suspicious still, and the Justices, more skeptical than the larger public, even seem to be in retreat. In 1982, when members of the Old Order Amish sought further exemption, this time from the social security laws (the Amish, for religious reasons, provide for their own elderly), the Court found the laws "essential to accomplish an overriding government interest." 16 In 1986, in Bowen v. Roy, 17 the Justices turned aside a Free Exercise challenge by a Native American who argued that requiring his daugh- ter to use a Social Security number would put her soul in jeopardy. 18 The following year, in O'Lone v. Estate of Shabazz, 19 the Justices rejected a challenge by Muslim inmates to prison rules that made it impossible for them to attend Jumu'ah, which is mandated by the Koran. 20 There is one area in which the Court has usually ruled in favor of claimants who seek accommodations. In the line of cases that began with Sherbert v. Verner,21 the Justices have explained that, if

11See id. at 210-12. 12See id. at 241-243 (Douglas, J., dissenting in part). 13See Yoder, 4o6 U.S. at 218. 14 98 U.S. 145 (1879). 15Id. at 164. 16 United States v. Lee, 455 U.S. 252, 257-58 (1982). 17 476 U.S. 693 (i986). 18See id. at 699-701. 19 482 U.S. 342 (1987). 20 See id. at 350-53. 21 374 U.S. 398 (1963).

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an employer refuses to accommodate the reasonable religious needs of an employee and the employee is subsequently dismissed, the state cannot deny unemployment compensation. 22 But assisting employees in resisting their private employers always seemed a peculiar place for the Court to make its free exercise stand, a point the Justices are evidently coming to recognize. 23 In 1989, in Frazee v. Illinois De- partment of Employment Security,24 the Justices warned that free- exercise protection for religiously based refusals to work might disappear if "Sunday shopping, or Sunday sporting, for that matter, 25 [would] grind to a halt." Small wonder, then, that the Court rejected a plea by the Yurok, Karok, and Tolowa Indians, who sought to overturn the Forest Ser- vice's decision to allow road building and logging in an area that they used for religious rituals. In Lyng v. Northwest Indian Cemetery Protective Association,26 the Justices admitted that allowing the har- vesting and road building might have "devastating effects" on the Indians' religious practices, but explained, accurately if rather lamely, that "government simply could not operate if it were required to satisfy every citizen's religious needs and desires." 27 Such rhetoric as much as states that the courts will grant no accommodations. If you lose in politics, you lose. As Justice Scalia wrote at the conclusion of his opinion for the Court in Smith:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. 28

Justice Scalia further warned that forcing the state to show that its facially neutral law was necessary to pursue a compelling interest "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.",29 Putting aside the obvious response that it was perhaps in order to avoid this "unavoidable consequence of democratic government" that

22 See id. at 403-06. 23 Indeed, Smith itself formally involved a refusal to grant unemployment compensation following dismissal for cause. See Employment Div. v. Smith, 494 U.S. 872, 874 (i99o). 24 489 U.S. 829 (1989). 2SId. at 835. 26 485 U.S. 439 (1988). 27 Id. at 451-52. 28 Employment Div. v. Smith, 494 U.S. 872, 890 (1990). 29 Id. at 888.

HeinOnline -- 107 Harv. L. Rev. 121 1993-1994 HARVARD LAW REVIEW [VoL. 107:118 the Free Exercise Clause was written, 30 it is dangerous to argue against the existence of a right on the ground that its protection would require hard work. Suppose, for example, that the Volstead Act, 31 which implemented the Eighteenth Amendment, had not included an exemption for the religious use of wine.32 Had a Christian or Jewish citizen been prosecuted for defiance of the Act, would a conviction really have been sustained against a Free Exercise challenge? The only correct answer is that the hypothetical would never have oc- curred, because millions of adherents to the nation's dominant religious traditions - Catholic, Protestant, and Jewish - use wine for religious purposes. No government would dare interfere with their religious observances. The Native American Church, however, is quite far from the mainstream, and the Court's cavalier dismissal of its protest is further evidence, if any is needed, that the political process will protect only the mainstream religions, not the many smaller groups that exist at the margins. 33 A respectable and thoughtful scholarly tradition argues that the Establishment Clause's neutrality requirement prohibits secular legislatures from ever granting special exemptions - in the jar- gon, "accommodations" - to dissenting religionists. 34 But the notion that every group must litigate for its rights, like the argument that affirmative action programs are permissible only after a court has found a violation, 35 creates a disincentive for government institutions to do the right thing unless ordered by a court. This outcome increases the likelihood that most groups, lacking the will or the resources for litigation, will not fight at all. Besides, a nation in which it is so difficult for religionists from outside the mainstream to protect their traditions can hardly be called religiously pluralistic. Some dissenters might even call it oppressive, which is why refusing accommodations might pose a further danger. As Frederick Mark Gedicks notes: "Without exemptions, some reli-

30 For discussions of the original understanding of the religion clauses in this context, see, for example, ARLIN M. ADAMS & CHARLES J. EMMERICH, A NATION DEDICATED TO RELIGIOUS LIBERTY 58-73 (I9go); and Michael W. McConnell, Accommodation of Religion, 1985 SUP. CT. REv. i, 19-24. 31 National Prohibition Act of i919, Pub. L. No. 66-66, 41 Stat. 305 (codified in scattered sections of 27 U.S.C.), repealed by Act of Aug. 27, 1935, ch. 740, § I, Pub. L. No. 74-347, 49 Stat. 872. 32 See McConnell, supra note 2, at 128. 33 See Douglas Laycock, A Survey of Religious Liberty in the United States, 47 OHIO ST. L.J. 409, 416-20, 438-39 (r986). 34See, e.g., Philip B. Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REv. i, 5-6 (I96I); Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against DiscretionaryAccommodation of Religion, 140 U. PA. L. REv. 555, 58o-6o9 (1991). 35See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 524-25 (1989) (Scalia, J., concurring in the judgment).

HeinOnline -- 107 Harv. L. Rev. 122 1993-1994 1993] THE SUPREME COURT - COMMENT gious groups will likely be crushed by the weight of majoritarian law and culture. Such groups pose no threat to order. However, majoritarian dominance could radicalize some believers into destabilizing, antisocial activity, including violence." 36 Of course, the majority can do what it too often has done to those who are "subversive of good order," especially those the nation itself has oppressed, such as Native Americans and slaves: it can declare the marginalized and violent dissenters to be criminals, and thus rid itself of them, their move- 37 ments, and their religions.

The Glimmer of Light

It was against this sobering background that the Supreme Court handed down its closely watched decision in Lukumi Babalu Aye. For advocates of more protection for religious liberty, the result was won- derfully refreshing. If the opinion did not go as far as it could have 38 - some of the briefs asked the Justices to reexamine Smith - it nevertheless represents a glimmer of hope that the Court may be ready to try a different way. Lukumi Babalu Aye involved a free exercise challenge to a series of ordinances enacted by the city of Hialeah, Florida, which had become concerned about animal sacrifices by santeros, the devotees of the religion of Santerfa. Santeria, which the Court correctly described as a fusion of elements of traditional Yoruba worship with "significant elements of Roman Catholicism," 3 9 derives from the effort by enslaved West Africans to preserve an important religious tradition in the New World. Santerfa first developed in Cuba and "was spread throughout the Caribbean and the United States by exiles from the revolution of 1959 . 140' Sometimes wrongly confused with devil worship, the Santerfa religion is a part of what is known as the Orisha Tradition, an ecumenical religious grouping with its center in the holy city of Ile-Ife, Nigeria, which may have as many as ioo million followers in the Western Hemisphere. 4 1 According to the teachings

36 Frederick M. Gedicks, Public Life and Hostility to Religion, 78 VA. L. REV. 671, 69o (1992). 37This proposition and much of the language are drawn from STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 127-29 (1993). 38 See, e.g., Brief of Council on Religious Freedom as Amicus Curiae in Support of Peti- tioners at 2-3, Lukumi Babalu Aye (No. 91-948); Brief of the United States Catholic Conference as Amicus Curiae in Support of Neither Party at 4, Lukumi Babalu Aye (No. 91-948). 39 Lukumi Babalu Aye, 113 S. Ct. at 2222. 40 Santeria, in 13 THE ENCYCLOPEDIA OF RELIGION 66, 66 (Mircea Eliade ed., 1987) [hereinafter Santeria]. 41 See MIGENE GONZALEZ-WIPPLER, SANTERfA: THE RELIGION - A LEGACY OF FAITH, RITES, AND MAGIC 8-11 (1989).

HeinOnline -- 107 Harv. L. Rev. 123 1993-1994 HARVARD LAW REVIEW [Vol. 107:118 of Santerfa, the God-force Oloddumare created the orishas, which are '42 worshipped not as gods but as "guardian angels. So far, the Santerfa religion is unlikely to spark much secular concern. However, Santerfa is more complex. Adherents to Santerfa, along with their priests - the santeros and santeras - believe that each individual's life is governed by a personal orisha. The orishas, in turn, are not immortal but are in need of nourishment, an offering that the orisha transforms "into pure energy - ash6 - which is then 43 used by him or her to carry out the needs of the supplicant.1 Sometimes, the offering takes the form of the ritual sacrifice of an animal, the blood of which is poured by the santero onto the stones that represent the orisha. "The slaughter is always performed quickly and cleanly according to ritual rules, and the flesh is nearly always cooked and consumed by the congregation as part of the orisha's feast." 44 It is at this point, when animals are sacrificed for their blood, that the secular world tries to intervene in the name of preventing cruelty - and, probably, to suppress religious practices that most observers find confusing and many find frightening. 45 But it is important to make clear before proceeding that in the Santerfa faith, if the orishas are not nourished, they cannot assist the religion's adherents in achiev- ing their destinies. 46 In the Santerfa theology, then, to prevent animal sacrifice is to sentence the adherents to a life in which destinies cannot be fulfilled. Animals are also sacrificed in Santerfa for purposes other than to nourish the orishas. The blood of an animal is offered, for example, in a ritual cleansing of an individual. In that case, the remains of the animal are not eaten because they take on the "negative vibrations" of the person to be cleansed. In certain initiation ceremonies, the blood of the animal is offered and the meat is eaten. In the general offering to the orishas, the meat is sometimes eaten and sometimes not.47 In the past, practitioners of Santerfa have been accused of violating animal protection laws. 48 Hialeah, however, was less concerned about cruelty to animals generally than about the particular practices involved in Santeria. Although the city struggled to frame its ordinances

42 Id. at 13. 43 Id. at 20. 44 Santeria, supra note 40, at 66. 45 In a section of his Lukumi Babalu Aye opinion joined only by Justice Stevens, Justice Kennedy catalogued evidence that many of the supporters of the Hialeah ordinances were driven by these concerns. See Lukumi Babah Aye, 113 S. Ct. at 2231 (opinion of Kennedy, J.). 46 See Santeria, supra note 40, at 66. 47 See GONZALEZ-WIPPLER, supra note 41, at 154-55. 48 See id. at 152-54.

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as involving no more than animal protection, and therefore dressed them in a secular, neutral rhetoric, the laws were not adopted until the Hialeah City Council received complaints about the animal sacrifices by the santeros, and (as will be seen) the laws contained so many exceptions that it was plain that the ordinances were aimed at Santerfa and nothing else. Small wonder, then, that the Supreme Court was unanimous in striking the ordinances down. Justice Kennedy's majority opinion in Lukumi Babalu Aye took the simplest path. Eschewing either a full-scale retreat from the Smith approach or a further restriction of the chances for a religious freedom plaintiff to prevail, Kennedy explained that, even if the Hialeah ordinances burdened the practice of Santerfa, the city had no need to justify them with a compelling interest as long as the laws were "neutral and of general applicability."49 He next pointed out that a law cannot be neutral if its object "is to infringe upon or restrict practices because of their religious motivation." 50 On this basis, the Court made quick work of the Hialeah ordinances. In the first place, the Justices noted, the ordinances limited their prohibitions to the killing of animals for "ritual" and "sacrifice," and the preamble to one resolution recited the city's "concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety."51 Indeed, "almost the only con- duct subject to [the law was] the religious exercise of Santerfa church members." 52 The Court listed what the ordinances excluded, either in their language or in practice: licensed food establishments could kill and serve animals, Kosher slaughter was excepted, hunting and fishing were fine, and even "the use of live rabbits to train greyhounds" received an exemption on the ground of necessity.5 3 There was more. Euthanasia of stray animals was exempted from the statute, as was killing for medical research or killing animals that lack commercial value.54 In fine, Hialeah allowed virtually any killing of animals for any reason, as long as it was not done by santeros. On the basis of this record, the Court easily concluded that the challenged ordinances "had as their object the suppression of religion" and were not of general applicability.55 Because the laws were so openly and obviously aimed at Santerfa, the Justices were able to strike them down without re-examining Smith's controversial suggestion that a heightened burden is appropriate only when the state has

49 Lukuni Babain Aye, 113 S. Ct. at 2226 (1993). SO Id. at 2227. S Id. at 2228. 52 Id. 53 Id. at 2229. 54 See id. at 2232. Ss Id. at 2231.

HeinOnline -- 107 Harv. L. Rev. 125 1993-1994 HARVARD LAW REVIEW [Vol. 107MX8 singled out a particular faith for regulation.5 6 Indeed, in language eerily reminiscent of Justice Scalia's lecture to the discharged employees at the end of Smith,5 7 Justice Kennedy chose to end with a stern admonition to the government: "Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular."5 8

The Gentle Diversion Lamb's Chapel raised what would seem at first to be the same problem - state action grounded in anti-religious animus - but the Court chose to treat the case as involving a different question altogether. In Lamb's Chapel, the Center Moriches School District, ad- hering strictly to New York state law, opened its facilities after hours for many groups, but not for religious groups. Lamb's Chapel, a church, sought to'use a school facility after hours in order to show a film described by Lamb's Chapel as a "[f]amily oriented movie - from the Christian perspective. '59 The application was rejected in light of a district rule providing that "school premises shall not be used by any group for religious purposes." 60 However, the district allowed the presentation of non-religious views "about family issues and child- rearing." 61 Lamb's Chapel therefore sued to gain the same access as everybody else. As in Lukumi Babalu Aye, the majority made short work of the state's arguments - only this time the Court was careful to do so without reliance on the Free Exercise Clause. Rather, the Justices solved the problem by use of straightforward free-speech reasoning. Justice White, writing for the majority, conceded that the school district could have prohibited all uses of its property outside of school hours. 62 Instead, however, it allowed some uses but banned the showing of the religious film. This raised a First Amendment question, but under the Free Speech Clause, not the Free Exercise Clause. Thus, said the Court, the proper inquiry was "whether it discriminates on the basis of viewpoint to permit school property to be used for the

56 See Employment Div. v. Smith, 494 U.S. 872, 878 (1990). Justice Blackmun, joined by Justice O'Connor, expressed a desire to see Smith reexamined in a proper case, as did Justice Souter. See Lukumi Babalu Aye, 113 S. Ct. at 2250 (Blackmun, J., concurring in the judgment); id. at 2240 (Souter, J., concurring in part and concurring in the judgment). 57 See Smith, 494 U.S. at 89 o . 58 Lukumi Babalu Aye, 113 S. Ct. at 2234. 59 Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 2145 (1993) (quoting App. to Pet. for Cert. at 91). 60 Id. at 2144 (quoting App. to Pet. for Cert. at 57a). 61 Id. at 2147. 62 See id. at 2146.

HeinOnline -- 107 Harv. L. Rev. 126 1993-1994 1993] THE SUPREME COURT - COMMENT presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint. '63 Permission to exhibit the family-values film, the Court noted, "was denied solely because the film dealt with the subject from a religious standpoint." 64 But "the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." 65 This statement is hornbook free speech law, so plain on its face that it is remarkable that the Supreme Court had to hear the case at all. But the Court of Appeals had ruled the other way, evidently influenced by the fact that the claimant was a religious organization - the supposition thus being the incredible one that the Constitution's religion clauses are meant to ensure that religious groups 66 have fewer rights than others. The school district apparently took something much like this view, because it argued that the Establishment Clause forbids the use of school property by religious organizations outside of regular school hours.67 Justice White ticked off the reasons that the district was wrong: The showing of [the] film would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances . . . there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. 68 The Court concluded that the use of the school by the religious group to show a film did not violate the venerable (if hardly venerated) three-prong test of Lemon v. Kurtzman69 for finding violations of the Establishment Clause. 7

63 Id. at 2147. 64 Id. 6S Id. at 2147-48 (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (2984)). 66 Cf. McConnell, supra note 2, at 194 (insisting that "the state should eschew both religious favoritism and secular bias'). 67 See Lamb's Chapel, 113 S. Ct. at 2148. 68 Id. 69 403 U.S. 602 (i97i). 70 See Lamb's Chapel, 113 S. Ct. at 2148. Under the Lemon test, a law challenged under the Establishment Clause survives scrutiny if it meets three criteria: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion."' Lemon, 403 U.S. at 612-13 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970) (citation omitted)). The test has long been the subject of academic criticism. See, e.g., Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & MARY L. REv. 933, 940 (1986); Steven D. Smith, Separation and the "Secular":

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Both Lamb's Chapel and Lukumi Babalu Aye have been cheered as representing a new approach to religious freedom. 71 But even though the results make a healthy start at overcoming the indifference toward non-mainstream religious groups that has often characterized the Court's jurisprudence, the decisions still rely on a rhetoric that could yet prove subversive rather than supportive of religious freedom.

The First Rhetorical Problem: DiscriminatoryIntent Both Lukumi Babalu Aye and Lamb's Chapel emphasize that the governmental decision in question singled out the religious group for specially disfavored treatment. In Lukumi Babalu Aye, the city of Hialeah crafted an animal safety ordinance that banned virtually no killings except those taking place in the Santerfa ceremonies. In Lamb's Chapel, the Center Moriches School District would have been happy to allow anybody else to show a film on family values; it simply did not want a religious film on family values. 72 This made the cases quite easy, and although Lukumi Babalu Aye rested on the Free Exercise Clause and Lamb's Chapel on the Free Speech Clause, each was consistent with Justice Scalia's insistence in Smith that only laws directed against particular religious groups will face heightened scru- 73 tiny and demand a compelling interest. Although one can hardly quarrel with the notion that a law at- tacking a religion is presumptively unconstitutional, one must be wary of endorsing Justice Scalia's troubling suggestion that the Free Exer- cise Clause has no other substantive content. Were the Justices to limit violations of the Clause to cases of intentional discrimination, they would place members of nontraditional religions in the same bizarre predicament as people of color, whose chances of proving equal protection violations have been severely circumscribed by a series of decisions insisting on direct proof of a motive to discriminate when the challenged law does not draw racial distinctions on its face. 74 But

Reconstructing the DisestablishmentDecision, 67 TEX. L. REv. 955, 957 (4989). I am a skeptic of Lemon's three-part test myself. See CARTER, supra note 37, at Iio-15. But the most consistent attacks have been launched by Justice Scalia, who once more pressed home the attack in his separate opinion in Lamb's Chapel. See Lamb's Chapel, 113 S. Ct. at 2149-50 (Scalia, J., concurring in the judgment). Although the proper interpretation of the Establishment Clause is vital in gaining a full understanding of religious liberty, see CARTER, supra note 37, at 110-24, an evaluation of the Lemon test is beyond the scope of this Comment. 71 See, e.g., Stephen V. Monsma, Strengthening Equal Access, ST. Louis PosT-DISPATCH, June 16, 1993, at 3C; Larry Rohter, Santeria Faithful Hail Court Ruling, N.Y. TAIMs, June 13, 1993, at 34. 72 In fact, the school district emphasized that Lamb's Chapel was particularly objectionable, for it was a "radical" religious group. Lamb's Chapel, 113 S. Ct. at 2148. 73 See Employment Div. v. Smith, 494 U.S. 872, 878-82 (1990). 74 See, e.g., Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 239-41 (976).

HeinOnline -- 107 Harv. L. Rev. 128 1993-1994 19931 THE SUPREME COURT - COMMENT whether under the religious freedom clauses or under the Equal Pro- tection Clause, this approach is troubling. Virtually any other plaintiff in a tort-style action has the freedom to rely on the sensible common law adage that people are presumed to intend the reasonably foreseeable consequences of their actions. By requiring a person who can assess the likelihood of a harm to compensate for it, this principle encourages private actors to take into account the harms that their actions might cause. Because the rational actor will then proceed only when the expected return outweighs the likely costs, net societal wel- fare is increased. But civil rights plaintiffs - and, now, free exercise plaintiffs as well - are mired in a bizarre jurisprudence under which government actors may proceed without considering the costs of their actions (measured in constitutional deprivations), as long as they act out of indifference rather than out of hostility. That was once the rule in torts as well, but the courts abandoned it long ago. Justice Kennedy, in a portion of his Lukumi Babalu Aye opinion joined only by Justice Stevens, made the analogy explicit. "[W]e can also find guidance," Justice Kennedy wrote, "in our equal protection cases." 75 Citing the Court's i977 decision in Village of Arlington Heights v. Metropolitan Housing Development Corp.,76 the ruling that started the equal protection cases down this dangerous road, Justice Kennedy explained that the ordinances were enacted "'because of,' not merely 'in spite of,"' their suppression of Santerfa religious practice. 77 In other words, Hialeah would be within its rights if it sup- pressed Santerfa by accident instead of on purpose - a theory that provides a disincentive for the city to determine whether a proposed action will harm a religion, just as the analogous theory of equal protection provides a disincentive to determine whether a proposed action will harm a racially identifiable group. Years ago, advocating a disproportionate impact test for equal protection violations, Michael Perry put his finger on the problem with the Court's purposeful discrimination rule: Laws having a disproportionate racial impact burden blacks because of their especially disadvantaged position in American society. A failure to require government to take account of that especially disadvantaged social position by selecting and fine-tuning laws to avoid the unnecessary or thoughtless aggravation of the situation would effectively ignore American society's responsibility for that social po- 8 sition. 7

75Lukumi Babalu Aye, 113 S. Ct. at 2230 (opinion of Kennedy, J.). 76 429 U.S. 252 (1977). 77Lukuini Babalu Aye, 113 S. Ct. at 2231 (opinion of Kennedy, J.) (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979)). 78 Michael J. Perry, The DisproportionateImpact Theory of Racial Discrimination, 125 U. PA. L. REv. 540, 558 (i977).

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In the case of such outsider religions as Santerfa, much the same might be said. Even if America has never subordinated its religious minorities as systematically as it once subordinated its racial minorities, the outsiders are still likely to lose in a political process premised on an incentive to be indifferent. In short, the test of government motivation is no better for as- sessing free exercise claims than for evaluating charges of racial discrimination. In both cases, it founders on the same shoals: the prob- lems of proof are well-nigh insurmountable. True, in Lukumi Babalu Aye, they were met and overcome, but that is a bit like observing that intentional racial discrimination was present in Brown v. Board of Education.79 The ability of a rule to resolve the cases on which everyone agrees is no test at all. Particularly is this true when those facing the proof problem are those the society has despised - people of color and (in recent years) religions that draw their members principally or exclusively from people of color. Even if, ideally, one wants to separate discrimination that is intended from discrimination that is accidental, the courts must recognize that we live in a time when intentional discrimination is either less frequent or better camouflaged than in the past. At the same time, we live in an era when the state acts in far more areas than in the past. Neither the religionists who may feel their ways of life threatened nor the people of color who may find the state disregarding their interests can easily vote with their feet, for there is, if one wants to remain in this country, nowhere to go. If the courts are to play an important role in protecting people whose interests the majority is likely to overlook, the way to do it is to force the state to take a moment and pay attention. And the way to do that is to incorporate into free exercise jurisprudence the simple tort principle that all of us (the state included) are presumed to have intended the reasonably foreseeable consequences of our actions. So if the state knows in advance that its logging and road building through sacred grounds may destroy the religious traditions of three Indian tribes, a mere showing that the policy was adopted in spite of, rather than because of, that effect should not be enough to save it. The state should not be allowed to burden a central religious practice, still less to eradicate a religion altogether, intentionally or not, absent a showing that the challenged policy is necessary to effectuate a compelling state interest.

The Second Rhetorical Problem: Are Condoms Like Prayers? Lamb's Chapel raised directly a different concern that was only distantly present in Lukumi Babalu Aye. The heart of the school district's objection in Lamb's Chapel probably was not an unthinking

'9 347 U.S. 483 (1954).

HeinOnline -- 107 Harv. L. Rev. 130 1993-1994 1993] THE SUPREME COURT- COMMENT hostility toward religion, but a special solicitude for the schoolchildren who are in the district's charge - the same solicitude that has led the Supreme Court over the years to turn aside one effort after another to perpetuate or reinstate organized classroom prayer in the public schools.80 Schoolchildren, after all, are at a sensitive, impressionable age; if the school organizes prayers in the classroom, led by a teacher, the students are in effect coerced to join in. This history of religious coercion is what leads to the concern of many public school officials with any hint of religiosity on school grounds, which is why, prior to the Equal Access Act,8' many schools forbade student-run religious clubs. The same history explains the embarrassing spectacle of students being disciplined (it is sometimes claimed) for proselytizing on the playground. It is this history, too, that surely led to the Center Moriches Union School District's resistance to the religious film in Lamb's Chapel.8 2 But the instinct to resist the incursion of coerced religious adherence in the schools should not be seen as resisting "religion" as such. There is nothing in our constitutional tradition to suggest that religion itself is an evil. On the contrary, the constitutional protections for religious freedom are evidence of its exalted position in the ideology of the founding generation. Government power, not religion, is the evil at which the Establishment Clause is aimed. Consider the case of organized classroom prayer, which the Su- preme Court has correctly held unconstitutional. Classroom prayer in the public schools is a popular solution to the moral vacuum in our political life. In some recent surveys, close to two-thirds of America's voters think the time has come, as some movement conservatives like to say, to put God back into the classroom.8 3 (God, of course, has never been out of the classroom. It is difficult to imagine how a

80 The decisions of the Supreme Court collectively known as the "school prayer cases" include: Engel v. Vitale, 370 U.S. 421, 433 (x962) (holding that voluntary, nondenominational prayer drafted by the state and used in public schools violated the Establishment Clause); Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963) (holding that devotional Bible readings and the recitation of the Lord's Prayer in public schools violated the Establishment Clause); Wallace v. Jaffree, 472 U.S. 38, 44 (1985) (holding that a moment of silence in public schools violated the Establishment Clause); Lee v. Weisman, 112 S. Ct. 2649, 2661 (1992) (holding that a clergy- led, nondenominational prayer at middle school and high school graduations violated the Es- tablishment Clause). 81 22 U.S.C. §§ 4071-4074 (1988). 82 See Lamb's Chapel, 113 S. Ct. at 2148. 83For example, a 1987 Gallup Poll indicated that two-thirds of those who were aware of a constitutional amendment designed to overturn the school prayer decisions supported it. See Tamara Henry, Poll: Americans Hopefid for Education's Future, UPI, Aug. 27, 1987, available in LEXIS, Nexis Library, Archive File. In a 1992 survey by USA Today, CNN, and Gallup, 62% of the respondents said that they were more likely to support a candidate if he or she favored an amendment to permit school prayer. See Richard Benedetto, Economy Shakes American Dream, USA TODAY, Jan. 16, 1992, at 5A.

HeinOnline -- 107 Harv. L. Rev. 131 1993-1994 HARVARD LAW REVIEW [Vol. IOT:NI8 human law could remove God from, or put God, anywhere.) As a constitutional matter, however, school prayer is necessarily impermis- sible because it violates the fundamental First Amendment right of religious liberty: the state cannot be allowed to teach religious ritual or to coerce religious adherence. To hold otherwise would violate the Free Exercise Clause.8 4 Organized prayer in the schools, whether the prayer is written by the state or taken from a holy book, whether the exercise is conducted by a teacher or led by a student, would represent an effort by the state to do both.85 Simply to be allowed an exemption - to be forced to stand aside, perhaps literally, as one's classmates join in the religious ritual - is of but scant assistance to the impressionable child who wants to fit in.86 This ability to "opt out" no more protects freedom of belief than the right to vote in private is protected in a system, still common in some parts of the world, where the citizen marks the ballot in private but must then publicly place it in one of several boxes, each clearly marked with the name of a candidate.' Thus, the often tortured explanations of why the First Amend- ment's Establishment Clause prohibits classroom prayer are beside the point. Although the cases are obviously correct, one must be careful not to read the Clause in a way that makes religion itself the enemy. Far cleaner to point out that the practice of school prayer is banned by direct application of the Free Exercise Clause. And once one recognizes that the unconstitutionality of school prayer flows from its inherently coercive nature, one is freed from the troubling rhetoric suggesting that prayer is problematic because of its religious nature. However, once one goes down this road, one immediately comes upon some worrisome scenery: prayer is not the only coercive classroom activity that might impinge upon religious freedom. Parents who object to their children's participation in biology classes that teach evolution or to sex education classes that talk about condoms are making a formally identical claim. As Nomi Maya Stolzenberg has pointed out, courts consistently refuse to confront the claims of some religious parents that even "mere exposure" to certain classroom ma- terials may interfere with religious training by inculcating in students

84 The Court's school prayer decisions have rested plausibly, but unnecessarily, on the Establishment Clause. See cases cited supra note 80. 85 In the 1992 Term, the Court refused to review a case that raised the question of student- led prayers. See Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993). Certainly, students should be allowed to organize their own prayer groups in the public schools, but students probably should not be allowed to lead prayers as part of an official school activity. 86 See Lee v. Weisman, 112 S. Ct. 2649, 2658-59 (1992) (arguing that peer pressure makes an adolescent's "choice" to opt out a meaningless one).

HeinOnline -- 107 Harv. L. Rev. 132 1993-1994 19931 THE SUPREME COURT- COMMENT a relativistic ethos of tolerance.8 7 True, the parental claim does not challenge the state's authority to indoctrinate children religiously (we can dismiss the assertion that "secularism" or "secular humanism" is a religion); the biology class, after all, is teaching science. But this distinction is unimportant, for we have established that the religious- ness of the classroom prayer is only a clue to the theoretical justification for the ban - it is not the justification itself. The justification is that, when the state indoctrinates children with religious belief, it violates their religious liberty. However, it is also possible to burden religious liberty by indoctrinating with something that is not religious. Modern biology or condom distribution can certainly be described as interfering with the tenets of some religions. Perhaps the degree of interference with religious liberty is less when the indoctrination involves something other than a state impo- sition of a religious ritual, such as a prayer, or a religious doctrine, such as creationism. But that does not mean that, when the state imposes something nonreligious on schoolchildren, no interference exists. If anything, the lesser interference when the state imposes a nonreligious curriculum goes to the extent of the harm and, thus, to the remedy - not to the question whether any harm has been com- mitted. For this reason, a remedy as severe as a ban on teaching an objectionable subject is not appropriate. Far better to do what many school districts do already - allow the children whose parents raise religious objections to portions of the curriculum to opt out. Some courts have rejected or sharply restricted opt-out rights,88 and Justice William Douglas warned twenty years ago against ceding to parents too much control over religion-based decisions on schooling their children.8 9 But surely the right to raise children according to one's religion existed long before there was a Constitution, and it seems absurd to suppose that government was instituted in order to take it away. As Justice Douglas wrote a few years earlier in Griswold v. Connect- icut, "We deal with a right of privacy older than the Bill of Rights ....)"90 Griswold, of course, was about the right of a married couple to make choices about birth control without state interference, but the right of parents to make choices about the religious training of the children they have brought into the world should be entitled to at least equal solicitude. If the point is a difficult one to grasp, the reason must be that the Supreme Court has engaged in an unintentional masterpiece of mis-

87 See Nomi M. Stolzenberg, "He Drew a Circle That Shut Me Out": Assimilation, Indoc- trination, and the Paradox of a Liberal Education, io6 HARV. L. REv. 581, 588-611 (1993). 88 See, e.g., Ware v. Valley Stream High Sch. Dist., 55o N.E.2d 420, 427 (N.Y. 1989). 89 See Wisconsin v. Yoder, 4o6 U.S. 205, 243-46 (1972) (Douglas, J., dissenting in part). 90 Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

HeinOnline -- 107 Harv. L. Rev. 133 1993-1994 HARVARD LAW REVIEW [Vol. 107:1x8 direction by founding its school prayer decisions on the Establishment Clause rather than the Free Exercise Clause. This unfortunate choice of constitutional mooring might lead the critic to suppose that the separation of church and state is designed to protect the "good" part of life - the state - against the "bad" part - the church. But the separation protects each from the other, in service of the larger goal of preserving religious liberty. 91 Allowing parents to excuse their children from at least some objectionable instruction could therefore further the goal of separating church and state, by shielding religious belief from state interference. On the other hand, the obvious danger of a rule allowing broad parental discretion to remove children from objectionable classroom instruction is that we may end up a nation of dunces. To this concern there are three very different responses. First, one might defend the notion of a core curriculum to which all children must be exposed. For this to work, however, the core must be minimal: perhaps little more than the three R's. Otherwise, as each interest group squeezes its own favorite program into the core, the basic curriculum will grow and grow and finally overwhelm the purpose of the parental authority to shield children. Second, one should not readily assume that millions of religious parents will in fact seek to exempt their children from classes that might be crucial in college admission or simply to function as an educated adult. Third, even if a broad parental power to remove children from objectionable courses led to a less educated citizenry, that result would at least stem from democratic choice. However unappetizing the image of an undereducated population might be, it is not clear that it is less appetizing than allowing the state (perhaps captured, in this effort, by small interest groups) to pressure children to turn against the religions in which their parents seek to raise them.

But Is Religion Important? Of course, all of this matters only if religion is itself seen as a positive good. Certainly the Founders thought it was; the metaphor- ical "wall of separation" between church and state was coined to describe a protection of religion from government, not the other way around.92 In a religiously pluralistic nation, the effect of this wall is

91 See generally ADAMS & EMMERICH, supra note 3o, at 51-58 (noting that the principle of separation between church and state was meant to protect both). 92 For discussions of this point, see, for example, id. at 51; ROBERT L. CORD, SEPARATION OF CHURCH AND STATE 5-I5 (1982); MARK DEWOLFE HOWE, THE GARDEN AND THE WIL- DERNESS: RELIGION AND GOVERNMENT IN AMERICAN CONSTITUTIONAL HISTORY IO (1965). For a thoughtful partial dissent, see LEONARD IV. LEVY, THE ESTABLISHMENT CLAUSE 165- 85 (1986).

HeinOnline -- 107 Harv. L. Rev. 134 1993-1994 1993] THE SUPREME COURT- COMMENT to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all. That is why, for example, Sunday closing laws are constitutionally shaky, and why public funds should not be expended for the construction of creches to celebrate the nativity of Jesus Christ. (The Supreme Court's evident uneasiness on these issues is baffling.93) But none of this means that religion itself is bad. It means that using government power to force one's fellow citizens to join the celebration of one's faith is bad. This distinction is sometimes missed in our national debates over the propriety of various forms of Christmas celebration. It is said, for example, that government buildings should not be adorned with wreaths and that schoolchildren should not sing carols because Christ- mas is a religious holiday. But to call Christmas a religious holiday is to miss an important point. There is a Christian holy day by that name, and celebrated on the same date, to commemorate the Nativity of Jesus Christ. But that holy day bears little connection to the secular Christmas holiday that nearly all Americans observe. 94 The Christian holy day of Christmas has nothing to do with trees or wreaths or Santa or reindeer; indeed, some Christians believe that telling children that a flying sleigh will land on the roof smacks of paganism. The secular holiday is celebrated, it sometimes seems, principally for the benefit of the retail trade, which often records half its annual sales during the Christmas season. 95 True, there would be no secular Christmas holiday had there never been a religious Christmas holiday, but that is a non sequitur. There would be no two-day weekends of rest (including the closure of public schools, government buildings, and many private offices) without the religious sabbath traditions that started them; that does not mean that the weekends "celebrate" (or even "observe") those religious sabbaths. If the government can celebrate the secular Christmas holiday, it can put up trees or wreaths, neither of which involves religious observance. It cannot, without crossing the line to the religious holiday, put up crosses or creches - a simple point that the Supreme Court has unfortunately misunder- stood. 96

93 Compare County of Allegheny v. ACLU, 492 U.S. 573, 6oI-O2 (1989) (holding unconstitutional the public display of a crche in conjunction with a religious inscription) with Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (upholding the public display of a creche in conjunction with secular images). 94 Just how secular is Christmas? Many more American adults celebrate it (96%) than identify themselves as Christians (82%). See Ari L. Goldman, Religion Notes, N.Y. TIMES, Feb. 27, 1993, at 9; Celebrating Christmas, USA TODAY, Dec. i8, 1992, at iD (table). 95 See, e.g., Kara Swisher, Keeping Registers Ringing, WASH. POST, Dec. 25, 1992, at C9. 96 See cases cited above in note 93.

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But aside from enlisting government assistance to pressure one's fellow citizens to join in the celebration of a particular faith, the secular space for religious freedom should be quite substantial. The original understanding aside, religious groups are of special value to a democracy, and the state should nurture them rather than reject them. Both Lamb's Chapel and Lukumi Babalu Aye involved religions singled out by a skeptical or even hostile state entity for special punitive treatment. That the religious groups needed to sue - in one case to gain the same rights already granted to secular groups, in the other to be able to practice its religion at all - is a signal of how far the religions have been forced from the autonomous and independent role that the First Amendment tradition contemplates and democracy desperately needs. In other work, I have argued for the importance of nurturing the religions as communities of resistance to state authority. 97 Following the work of the theologian David Tracy 98 and, to some extent, of Alexis de Tocqueville, 99 I have pointed out that religions best serve democracy when they provide independent moral voices, pressing upon their adherents bona fide claims to allegiance and thus splitting the loyalties of the religious. In this way, they are able to challenge and to some extent weaken the competing claims of the state. This vision of religion is important for two reasons. First, it enables the religions to serve as intermediary institutions, filling the gulf between government and citizen that a totalizing state would prefer to fill for itself. Intermediary institutions supply a bulwark against majority tyranny. By providing a separate sphere from the sphere of state control, they enable their members to work out understandings of reality that are often quite different from those of the powerful group of individuals known as the state. Those understandings, in turn, may serve as the basis for resistance to state authority - sometimes resistance on behalf of progressive change, as in the civil rights movement, sometimes resistance on behalf of causes that limit human possibility, as in the case of the more radical elements in the pro-life movement. But no magic formula exists to allow religious resistance in one cause and eliminate it in another. Indeed, among the many potential intermediary institutions, religions are unique in several respects. Unlike lobbying groups or private clubs, the religions engage their members in the contemplation of ultimate questions. Religions possessing strong traditions of cor-

97 I recognize that this vision is controversial. For a detailed defense, see CARTER, cited above in note 37, at 23-43. 98 See DAVID TRACY, PLURALITY AND AMBIGUITY: HERMENEUTICS, RELIGION, HOPE 83- 85 (1987). 99 See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 291-92, 295 (George Lawrence trans., Anchor Books ed. 1969) (12th ed. 1848).

HeinOnline -- 107 Harv. L. Rev. 136 1993-1994 1993] THE SUPREME COURT - COMMENT porate worship, moreover, involve their adherents in a search for answers to those questions - a search for ultimate meaning - in company with a faith community. Upon discovering this communal understanding, members of a religion will often choose to give their principal allegiance to what a shared faith has helped them to uncover, thereby rejecting the perhaps different understanding that is repre- sented by the commands of the state. Nonreligious citizens and adherents to the mainline religious faiths might have trouble envisioning the worshippers at Lamb's Chapel or the santeros who sacrifice animals to the orishas as involved in democratic intermediary activities, but that is precisely what they are doing. Naturally, the religiously devout will see many things differ- ently from the way their fellow citizens do. Taking an independent path - exercising what Tracy calls the power of resistance' 00 - is part of what the religions are for. But the religions can make a difference in how their adherents see the world only if they remain independent from the world. All too often, this requires judicial intervention against an uncaring or ac- tively hostile state. The late Robert Cover was doubtless correct to point out that the centrality of a proposition to a religion is not truly tested until all of the state's forces - not excluding the courts - line up on the other side and the oppressed religion must decide whether to abandon what it claims to cherish.' 0 ' One hopes that the opportunities for testing of that kind will be rare. The society that tries to remove these intermediary obstacles to its policies might well succeed in the long run, particularly when the religious traditions that the state restricts are unpopular or unknown. (But then, the popular ones rarely need judicial protection.) The second way in which the vision of religions as communities of resistance is pro-democratic is that it permits religions to continue to play their important historical role as vital transmitters of values - of meanings - from one generation to the next. Here again, not all religious traditions will transmit the same values, and not all the values transmitted will be stable and pro-democratic. But in a nation in which a strong majority of citizens describe themselves as religious and a strong majority of the religious say they look to their religious traditions for moral guidance, 10 2 we should celebrate and carefully

100 See TRAcy, supra note 98, at 82-84. 101See Robert M. Cover, The Supreme Court, i982 Term - Foreword: Nomos and Narra- tive, 99 HARv. L. REv. 4, 48-53 (i983). 102Surveys indicate that roughly half of American adults consider their religious beliefs very important. See GEORGE GALLUP, JR. & JIM CASTELLI, THE PEOPLE's RELIGION 35-36 (1989). By most measures, the United States is the most religious nation in the Western world; one must therefore assume that all of these religious people believe that their faith fills an important need, in their own lives and perhaps in the larger society as well. See CARTER, supra note 37, at 35-38.

HeinOnline -- 107 Harv. L. Rev. 137 1993-1994 HARVARD LAW REVIEW [VOL. 107:118 preserve the vital freedom of the religions to supply their adherents the values that their traditions deem best. The role of religions in the transmission of values has been a controversial one and, nowadays, is viewed by many theorists of liberalism (as well as by secular political liberals) with a worrisome but perhaps understandable skepticism. Such legal theorists as Bruce Ackerman and Thomas Nagel have been quite explicit in trying to outline visions of the public sphere in which arguments from religious premises are forbidden. 0 3 Not only is liberalism made uneasy by religious devotion, but it has become commonplace for social scientists to make bold predictions of the end of religion as an important force in American public affairs. Says Robert Nisbet: "In our day . . . religion is a spent force. If God is not dead, he is ebbing away, and has been since the early part of the century. ' 10 4 Even Robert Bellah and his collaborators, who defend the religious impulse in their best- selling book Habits of the Heart,10 5 seem to doubt that religion has the power to mold a public ethics in America - perhaps ignoring, as one critic has noted, another America, in which "religion and the churches continue, on the whole, to provide some boundaries for liberalism today just as they did 150 years ago, when de Tocqueville 0 6 wrote Democracy in America."' Naturally, religions will sometimes preach what seems to the rest of the world wrong. Indeed, they will sometimes preach what seems to the rest of the world crazy. But this is only to be expected. The religionist, citing the sovereignty of religious tradition, will sometimes say to the secular state, "I refuse to do as you command, because I answer to a higher authority." This is a radically destabilizing proposition, central not only to the practice of Santerfa in the face of an aggressively hostile community, but also to the civil resistance of King and Gandhi. Mark Tushnet has suggested that it is this radical possibility of refusing to accept the will of the state that leads to America's political suspicion of religious belief.10 7 Perhaps he is right, for the nature of the religions is not just to know, but, often, to act, and to act at times without regard to what others consider the settled moral

103 See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE IO-1I (1980); Thomas Nagel, Moral Conflict and PoliticalLegitimacy, x6 PHIL. & PUB. AFF. 215, 226-27 (1987). I discuss these and other works of contemporary legal philosophy in CARTER, cited above in note 37, at 213-32, and in Stephen L. Carter, Scientific Liberalism, Scientistic Law, 69 OR. L. REV. 471, 5o-16 (I99o). 104 ROBERT NISBET, HISTORY OF THE IDEA OF PROGRESS 353 (I980). 105 ROBERT N. BELLAH, RICHARD MADSEN, WILLIAM M. SULLIVAN, ANNE SWIDLER & STEVEN M. TIPTON, HABITS OF THE HEART 62-65, 240-43 (1985). 106 ROBERT B. FOWLER, UNCONVENTIONAL PARTNERS: RELIGION AND LIBERAL CULTURE IN THE UNITED STATES 27-28 (1989). 107 See MARK V. TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTI- TUTIONAL LAW 269-76 (I988).

HeinOnline -- 107 Harv. L. Rev. 138 1993-1994 1993] THE SUPREME COURT- COMMENT truth: "Religion poses a threat to the intellectual world of the liberal tradition because it is a form of social life that mobilizes the deepest passions of believers in the course of creating institutions that stand between individuals and the state."'10 8 Writing on a different point, Owen Fiss has warned that, "[t]o devalue passion when it misleads would not only be to neglect its actual place in our lives, but more significantly would transform it into something else, something akin to reason." 10 9 Between them, Tushnet and Fiss capture in a nutshell the reason that the people of Hialeah tried to suppress the santeros: they are seen as unreasonable people. They are guided by passions, primitive and not quite rational. In other words, they are crazy, and their religious tradition is a superstition. Whereas what Santerfa really is - what the "radical" proselytizing of Lamb's Chapel really is - indeed, what religion really is - is an alien way of knowing the world, alien, at least, in a political and legal culture supposedly premised on reason. The idea that any group will refuse to bow, either to law or to what some are bold to call reason, is potentially a very subversive one, but religion, properly understood, is potentially a subversive force - which is all that one can reasonably ask of a democratic intermediary.

The Compelling Case for Strict Scrutiny In constitutional terms, the importance of protecting the intermediary role of the religions means that courts must look with skepticism on laws that interfere with religious practices - far more so when religions are outside the mainstream. That is why the city of Hialeah had to lose in Lukumi Babalu Aye - and why it probably should have lost even had the animal protection ordinance not been targeted specifically at Santerfa. As Justice Souter pointed out in his concurring opinion, "'Neutral, generally applicable' laws, drafted as they are from the perspective of the non-adherent, have the unavoidable potential n0 of putting the believer to a choice between God and government."" When the state puts the believer to this choice, it challenges precisely what is most valuable about the religions: the ability to preach that the world has a meaning that is different from the one that is assigned by that powerful agglomeration of individuals known as the state. The city of Hialeah may not believe that the orishas will die if they are not nourished, or the city may not believe the issue an important one, but the santero is certain that a human being's destiny cannot be fulfilled if the orishas perish.

108 Id. at 248. 109 Owen M. Fiss, Judgment and Value: Response, YALE J. CRITICISM, Spring 1992, at 213, 218. 110Lukumi Babalu Aye, 113 S. Ct. at 2250 (Souter, J., concurring in part and concurring in the judgment).

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The battle between the state and the religions thus becomes a struggle over competing ways to understand reality - a fight over epistemology - resolved not through logic but through power. For example, in Edwards v. Aguillard,111 although the Supreme Court quite sensibly ruled that scientific creationism cannot be taught in the public schools, the argument could easily have been described as involving competing understandings. Nothing in the epistemology of contemporary science is likely to convince those whose hermeneutic begins with the acceptance of the literal truth of the Genesis account of creation. Advocates of creationism do not see themselves as pros- elytizers: they see themselves as trying to convince the schools to teach the truth - which, as it happens, is precisely the position of the parents who object. The arguments went past each other. Neverthe- less, one side had to win. 112 The matter is easily resolved when the religious resisters try to impose their meaning on the rest of the society: usually, the society wins. The trouble arises when the rest of the society tries to impose its meaning on the religious resisters. If one says automatically - as Justice Scalia did in Smith - that the society wins again, then one is saying, in effect, that religions unable to protect themselves in the political process are doomed to destruction. But a Free Exercise Clause that extends so slender a privilege to minority religions those most likely to lose in politics - is practically useless. The solution is uncomplicated, even if unpopular. To nurture those religions in their vital role as communities of resistance, the courts must strike a careful balance between protecting their freedom and preserving the wall that separates church from state. This can be done through a rule that requires the state to carry a heavy burden, perhaps even a compelling one, as its regulation strikes closer and closer to the heart of the religious tradition in question. In an ideal world, the legislature would recognize the unique historical circumstances of the religions and the importance of nurturing their contin- ued existence, and would therefore grant them a form of differential treatment, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that feel threatened must make application to the courts. Instead of worrying about Justice Scalia's slippery slope in the face of such a request, the courts should recognize that it is the domination of our politics by the mainline faiths, which the state never threatens, that makes the need for accommodation so acute. Thus in such cases as Smith and Lyng, the state should not be able to proceed unless it

111482 U.S. 578 (1987). 112 For further elaboration of this argument, see Stephen L. Carter, Evolutionism, Creation- ism, and Treating Religion As a Hobby, 1987 DuKE L.J. 977, 98o-82.

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is able to show a compelling interest, for in both cases its regulations strike at the heart of the religious practice in question. The same is true in Lukumi Babalu Aye, which is why - unless the protection of animal life is a compelling interest, a question the Court never ad- dressed - the adherents of Santerfa should prevail in the future even against an ordinance that does not single out their faith for special disability.

Conclusion A century ago, James Bradley Thayer opened a sparkling essay on jury trials in cases raising supernatural questions by noting: "The law can deal with the supernatural - with such questions as the existence of God or the devil - in any way that it chooses." 1 3 Within certain broad limits imposed by the religious freedom clauses, this observation remains true. Every claim for a special exemption for a religious practice raises this question, at least implicitly, for the religionist making the claim does so because of a bedrock belief that God - some god - exists. Consider the case of a Jehovah's Witness who believes that willing receipt of a blood transfusion violates the Biblical prohibition on ingesting blood and that it will lead to a denial of eternal salvation. From the point of view of the Witness, a court that requires the transfusion is not acting neutrally toward the belief; the court is treating the belief as necessarily false.114 Perhaps the secular state believes that it can do nothing else, but it should not pretend, in Thayer's terms, that no choice is being made. The lesson of Lukumi Babalu Aye and Lamb's Chapel is that the Supreme Court is willing, at a minimum, to set aside efforts to make religions suffer special penalties that secular organizations do not. This suggests, for example, that there would be no judicial interference with efforts to revoke the exemptions for religious groups that engage in activities inconsistent with their tax status," 5 because other groups that broke the rules would lose their status as well; but it also suggests that the Court of Appeals for the District of Columbia Circuit was probably wrong to hold that religious groups, unlike other groups, cannot obtain copyrights through special votes of the Congress. 116 In other words, the Court may be adopting sub silentio Justice Kennedy's proposed analogy between the Free Exercise Clause and the Equal Protection Clause.

113 JAMES B. THAYER, Trial by Jury of Things Supernatural, in LEGAL ESSAYS 325, 325 (I9o8) (essay first published in I8go). 114 1 discuss this proposition in more detail in CARTER, cited above in note 37, at 219-24. I'sSee, e.g., Robert D. Hershey, Jr., Falwell's Gospel Hour Fined for Political Activity, N.Y. TIMES, Apr. 7, 1993, at AI6. 116 See United Christian Scientists v. Christian Science Bd. of Directors, 829 F.2d 1152, 1154 (D.C. Cir. 1987).

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But that approach, although more sympathetic to free exercise claimants than others that the Justices have tried in recent years, does not go far enough in resolving the tension that occurs when a state regulates without regard to religions that exist on the margin of the society. Instead, the Justices should adopt the compelling state interest approach outlined above. In no other way can the Court nurture the religions in their vital democratic role as communities of resistance. To do otherwise is in effect to allow the state to batter the less powerful religions until they are destroyed. (Again, with pain, one thinks of Lyng.) Too often, this is precisely what we as a people try to do. Perhaps the nation supposes that if it kicks these unruly and subversive religious communities hard enough and often enough, it will be able to get them to abandon their eccentricities. Therein lies a curious parallel. Some adherents of Santerfa believe in homeopathic magic - the ability to bring about a physical phenomenon by acting it out on a model, such as a doll or a stone. Kicking a stone down a flight of stairs in order to injure the human being that the stone represents is a classic example." 7 Many among the larger polity - certainly one would have to include the good people of Hialeah - evidently believe in homeopathic magic too. For that reason, one cannot assume that the decisions in Lamb's Chapel and Lukumi Babalu Aye mean that religious freedom is now alive and healthy, least of all in a legal and political system that often seems to see religion as more in need of suppression than liberation. Rather, religious freedom is still terribly ill, and our national dabbling in the homeopathic magic of kicking and kicking and kicking may yet lead to its death - at least, to the death of the sort of religious freedom that allows each of us to offend or infuriate our fellow citizens because of the content of our beliefs. Unless the Court and the society it serves broaden their vision of what it means for religion to be exercised freely, we will very likely end up in a society in which the mainline religions flourish, protecting themselves through political clout, and the sparkling diversity of religious life at the margins is snuffed out.

117 See GONZALEZ-IVIPPLER, suPra note 41, at 18-xg.

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